Public document. If you are in LA next Thursday morning, this might be
interesting to watch. My comments in [].
footnotes first
1 Furthermore, with regard to the three other cases in which
defendant represented Henson, all were completed before Henson retained
defendant in his copyright case. Specifically, the final dispositions of
these cases are as follows: Barton v. Henson - March 17, 1998; People v.
Henson - March 26, 1998; Hoden v. Henson - February 20, 1998.
(Declaration of Ava M. Paquette ("Paquette Dec"), ¶ 21.)
2 Berrys obsession with attacking the Church of Scientology and
attorney Kendrick Moxon was conceded by him with braggadocio when he
taped an interview with a person he solicited for legal representation
who was already represented by Mr. Moxon. When asked his agenda for
seeking the representation, he replied: "My agenda is to bite Scientology
in the butt and to cause it as much grief as possible. Anything that is
a black eye for Moxon is a good deed as far as I am concerned." (Ex.
N.)
3 Plaintiff notes his position that Mr. Cipriano and his
testimony are utterly irrelevant to any issue in this case, and plaintiff
will be filing a motion to strike that testimony. However, it is
addressed here in order to provide background for the Court.
4 At Ciprianos deposition, counsel for the parties agreed to
have the deposition sealed until such time as plaintiff moved to strike
it, which will be filed shortly. If the Court desires, plaintiffs
counsel can lodge it with the Court under seal. (Paquette Dec., ¶ 24.)
5 Berrys refusal to honor this commitment is unconscionable.
When plaintiff deposed one of Berrys former partners, Stephen Lewis, and
Mr. Lewis gave considerable negative testimony concerning Mr. Berry, Ms.
Matthai insisted that the transcript be sealed and not used for any
purpose other than this litigation. Plaintiffs counsel made that
agreement, in good faith, reminding Ms. Matthai that it has been her
client, Graham Berry, who has a proclivity to post everything on the
Internet. Plaintiff has fully honored his agreement, but clearly the
admonition concerning defendant was well warranted. (Paquette Dec., ¶
23.)
6 The Court should be informed that he made the same defense
to his posting of the sealed transcript in his copyright case. As
discussed, supra, Hensons similar "mistake" in the copyright case against
him, in which he was represented by Berry, resulted in a contempt
sanction. (Ex. C.)
7 In any event, Mr. Moxon is engaged in matters in other
litigation on the east coast and will not be attending Mr. Hensons
deposition, so Henson and Berry will be unable to direct their abuse at
Mr. Moxon.
8 Despite Mr. Berrys admissions that he represented Mr.
Hurtado "pro per," and he had sex with Mr. Hurtado during the
representation, and his assertions of Mr. Hurtados lack of intelligence,
Berry has insisted that he will not settle this case for "even a dime,"
demanding that this Court try the case.
Ava M. Paquette, SBN 165375
Helena K. Kobrin, SBN 152546
MOXON & KOBRIN
3055 Wilshire Blvd., Ste. 900
Los Angeles, CA 90010
Telephone: (213) 487-4468
Attorneys for Plaintiff
MICHAEL HURTADO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MICHAEL HURTADO,
Plaintiff,
vs.
GRAHAM E. BERRY,
Defendant.
)
)Case No. BC 208227
Honorable Ray L. Hart
PLAINTIFFS OPPOSITION TO MOTIONS BY DEFENDANT AND H. KEITH HENSON TO
QUASH OR FOR A PROTECTIVE ORDER RE DEPOSITION OF NON-PARTY KEITH HENSON;
DECLARATIONS OF AVA M. PAQUETTE AND HELENA K. KOBRIN IN SUPPORT THEREOF
Date: September 14, 2000
Time: 9:00 a.m.
Dept: 10
I. INTRODUCTION
Defendant and Mr. Hensons characterizations of this case are
misguided.
This case is about Graham Berry, a fifty year old attorneys abuse
of the attorney/client relationship by purposely taking advantage of the
plaintiff, Michael Hurtado, an emotionally and intellectually challenged
young man in minor trouble with the law, tricking him into believing that
only through his representation could plaintiff be saved from what
defendant described to plaintiff as horrible and dire consequences so that
he could force plaintiff to exchange defendants legal services for sex.
Defendants sole purpose in doing so was to satisfy his own prurient sexual
interests with no thought whatsoever for his client or his clients
well-being.
Indeed, what this case and this court are not here to provide, is
a forum for Mr. Berrys anti-religious invective and intolerance. This
case is not about Mr. Berrys dispute with the Church of Scientology, yet,
he persistently seeks to prevent discovery of relevant evidence by
continuing on an illogical pattern of attacking a minority religion to
somehow justify his own conduct and to prevent discovery. The Scientology
religion has nothing to do with this case and nothing to do with Mr.
Hurtado, yet Mr. Berry inserts this subject into almost every aspect of
his papers and motions. Unfortunately, this is not the first case where
Mr. Berry has pursued this modus operandi; in fact, he has been repeatedly
sanctioned and admonished by state and federal courts alike for this very
practice, including attacks on counsel such as he makes here.
Contrary to Mr. Berrys motion, the deposition of H. Keith Henson
("Henson") was noticed solely because Henson has relevant evidence of
matters which are at issue in this case:
1. Henson, a former client of Mr. Berry who long ago swore that Berry no
longer represented him, filed a pro per motion to vacate the judgment
against him in a case where Mr. Berry represented him at trial, asserting
that his lawyers representation of him was below the standard of care
required. This occurred during precisely the same time period that Mr.
Berry was representing plaintiff here. Thus, under the discovery
standards, such information is relevant and likely to lead to the
discovery of admissible evidence in the issues in this action and as such,
is discoverable. Moreover, as shown below, no privilege attaches to such
evidence because it has been waived by both Henson and Mr. Berry.
2. Henson is a personal friend of Mr. Berry who admittedly has engaged in
numerous written and oral communications with him over the past two years
regarding this case and other matters. Many of those matters have no
relationship to any representation by Mr. Berry of Henson. And even with
respect to those that originated in an attorney-client relationship, no
work product claim can attach to Hensons knowledge, as Berry no longer
practices law, and Henson is not a lawyer.
3. Mr. Berry violated a stipulation of the parties by disclosing to
Henson information from a sealed deposition taken in this case, part of
which Henson posted publicly to the Internet. This is a serious matter,
because the deposition at issue was wholly irrelevant to this case,
plaintiff formally demanded the deposition be suspended to seek a
protective order, and Mr. Berrys counsel refused. She thereafter abused
the discovery process by taking a lengthy deposition for use in Mr.
Berrys bankruptcy action after the close of discovery therein but not
for legitimate use in this case.
Mr. Berrys loud protestations of "abuse" of discovery are wholly
unsupported. He and his counsel make such protestations for the purpose
of destroying this Courts time and converting what should be a simple
deposition into hours of needless bickering, an effect they have created
using a $1 million dollar insurance defense fund to raise every possible
obstacle to simple discovery. Defendant has taken 14 depositions in this
case, which includes plaintiffs 80-year old grandmother and plaintiffs
uncles ex-common law wife, among others. Plaintiff, on the other hand,
has taken a mere five depositions. It is clear that defendant and his
counsel are utilizing insurance defense funding to attempt to overwhelm
the plaintiff with frivolous and expensive actions, objecting to all
discovery plaintiff attempts to take. This motion is simply more of the
same.
Both Hensons and defendants motions should be denied and the
deposition should go forward.
II. STATEMENT OF FACTS
A. Background History Of Discovery Thus Far.
Contrary to defendants misrepresentations to the Court, it has
been defendant and his counsel that have taken the discovery in this case
far beyond what is mandated under the Discovery Act.
As an example of the improper extremes to which Mr. Berry has gone
in conducting discovery in this case, just recently, his counsel deposed
plaintiffs fathers cardiologist, who testified that plaintiffs father was
on the heart transplant list at UCLA Medical Center, that he would
adamantly oppose defendant forcing plaintiffs father into deposition, and
that any such stress might cause him to have a fatal heart attack. In
response, Mr. Berrys counsel repeatedly attempted to obtain the doctors
agreement that the deposition could be taken in a hospital room, with
resuscitation devices ready and the doctor standing by, in the event
plaintiffs father were to suffer a heart attack during the deposition!
(Ex. A.)
As another example of discovery excesses by Mr. Berry, the Court
should take judicial notice of the motion that Mr. Berry brought for the
Court to rule concerning custody of the "Cipriano Documents," which this
Court clearly had no jurisdiction to adjudicate.
B. Background Regarding H. Keith Henson.
Beyond his posting of sealed information related to this case to
the Internet, Henson is a material witness here for other reasons. In
March 1996, Henson posted an unpublished, copyrighted Scientology work on
the Internet. As a result, a copyright infringement action was brought
against him, entitled Religious Technology Center v. Henson, Case No.
C-96-20271 (N.D. Cal.). Henson was pro se through most of the litigation,
but he engaged Mr. Berry to represent him at the trial and in certain
pretrial matters in late April and May 1998. At the conclusion of the
trial, the jury found Henson liable for willful copyright infringement and
awarded $75,000 in statutory damages, believed to be the largest judgment
for a single copyright infringement in the history of the United States
Copyright Act. (Ex. B.)
Hensons posting of sealed litigation information on the Internet
from this case, is not the first time he has engaged in such an act. On
May 12, 1998, the same day the jury returned its verdict against Henson in
RTC v. Henson, Henson posted to the Internet a sealed trial transcript.
Shortly thereafter, the District Court issued an OSC as to why Henson
should not be held in contempt. Mr. Berry again represented Henson at his
civil contempt trial. Henson was held in contempt and was sanctioned for
his posting. At the conclusion of the contempt trial on June 19, 1998,
referring to the arguments made by both Henson and Mr. Berry, the
District Court stated: "I also find it very disturbing that the defense
can attempt to shift the blame for the posting onto either the court
reporter or the Court or onto [the plaintiff], because I just dont think
that any reasonable person looking at the circumstances would view it that
way." (Ex. C.)
On July 10, 1998, Henson filed a Substitution of Attorney in
which he stated "[M]r. Graham Berry is no longer representing defendant
in this matter." (Ex. D.)1
[But I never said he was not giving me legal advice on other matters.]
The relationship between Henson and Mr. Berry has hardly been
limited to their attorney-client relationship, as proven by the e-mails
between them, which Henson has filed with his motion. Clearly, they have
engaged in numerous communications that were never remotely within the
attorney-client relationship.
C. Background to Hensons Involvement in this Lawsuit Requiring His
Deposition.
On November 1, 1999, the deposition of Robert Cipriano was noticed
by Mr. Berry. Mr. Cipriano was sued by Berry in 1998 for defamation,
arising out of a 1994 declaration in which Cipriano detailed Berrys
conduct in preying upon teenage boys and drug abuse. Berry v. Cipriano,
et al., Case No. BC 184355 (L.A.C.S.C.). Present counsel for the
plaintiff, Moxon & Kobrin, represented Cipriano and also represented
another defendant, Isadore Chait, in a consolidated defamation action
filed by Berry. Berry v. Barton, Case No. BC 186168 (L.A.C.S.C.).
While hardly any litigation occurred involving Cipriano, there was
considerable litigation in the Berry v. Barton case arising out of Berrys
discovery abuse, and the case against Isadore Chait was dismissed as a
discovery sanction against Berry (Ex. E), following several other
discovery sanctions against him. (Ex. F, p. 18; Ex. G, p. 78.)
Thereafter, Berry dismissed Cipriano and all other defendants. (Ex. H.) A
motion to have Berry declared a vexatious litigant was filed by several of
the defendants (excluding Cipriano) and a finding made that Berry was a
vexatious litigant, under three independent grounds. (Ex. I.) At the
hearing on the motion, the court stated: With all the due respect, Sir, I
have to sadly state that if there is such a thing on Gods green earth as a
vexatious litigant you, Sir, sadly, are it.
(Ex. J.)
During the pendency of the Berry v. Barton and Berry v. Cipriano
cases, Mr. Berry filed Pattinson v. Church of Scientology International,
et al., Case No. CV-98-3985 CAS (Shx), allegedly on behalf of Michael
Pattinson. The 312-page First Amended Complaint sought damages against
several Scientology churches and ecclesiastical officials for a variety of
purported federal and state claims. For reasons still known only to
Pattinson and his counsel, Berry also named as defendants attorney
Kendrick Moxon (as counsel to some Churches of Scientology), as well as
President Clinton, the Secretary of State, the Secretary of the Treasury,
the National Security Advisor, other past and present federal officials
and actor John Travolta. However, Mr. Berry served only Mr. Moxon,
forcing Mr. Moxon to litigate the case. After the District Court found
the complaint to be "a rambling tale of irrelevancy" (Ex. K), Berry
amended the complaint twice. The complaint was ultimately dismissed, and
he was sanctioned over $28,000 both under Fed.R.Civ.P. 11 (as a frivolous
action) and 28 U.S.C.§ 1927 (for vexatiously multiplying and prolonging
federal proceedings) for this misconduct against Mr. Moxon. (Exs. L and
M.)2
Berry declared bankruptcy and sought to discharge the sanction
against him, along with numerous consumer debts. In an adversary action
filed to hold the sanction non-dischargeable, Berry asserted the unusual
defense that in the Cipriano case, in which he was the plaintiff, he was
so distracted by the "discovery abuse" against him (in which only he was
sanctioned) and distressed by the purported defamation by Cipriano against
Berry, that he was unable to handle the Pattinson case competently. In
essence, the "defense" asserted by Berry was that Cipriano could testify
that he lied in his 1994 declaration, lied in his 1998 deposition in the
Berry v. Cipriano case, and lied in other declarations regarding Berry,
but would now tell the "truth," including that Mr. Moxon allegedly knew
Cipriano lied. In a further leap of logic which escaped each judge to
whom the argument was presented, Berry therefore concluded that he should
not have been sanctioned for his various vexatious acts in litigation and
his discovery misconduct.
Acting pro per, Henson made this identical incomprehensible
argument in a motion under Fed.R.Civ.P. 60(b) to vacate the copyright
judgment against him on the stated ground that he lost the case because
his lawyer, Graham Berry, was so distracted with his pro per cases and the
Cipriano allegations that his representation of Henson fell below the
standard of care necessary to defend the action. (Ex. O.) Mr. Berry filed
a declaration in support of Mr. Hensons Rule 60(b) motion in which he
repeated these same representations, i.e., that he lost Mr. Hensons
copyright case because his representation of Mr. Henson fell below the
appropriate standard of care as a result of the "distraction" to which he
was allegedly subjected. (Ex. P.) To accompany his Rule 60(b) motion,
Henson also filed the identical "Motion for Instructions" filed by
defendant in this case with regard to the Cipriano documents. Both the
Rule 60(b) motion and the "Motion for Instructions" were denied by the
District Court, and Henson filed an appeal in the Ninth Circuit.
Notably, Berry asserted his same "confused and distracted"
defense in Pattinson in a Rule 60 motion to vacate Rule 11 sanctions which
the Honorable Christina A. Snyder had imposed against Mr. Berry based on a
similar scurrilous attack against Kendrick Moxon. The District Court
emphatically rejected that defense: "It should further be noted that Berry
was declared a vexatious litigant just months ago by a judge of the Los
Angeles Superior Court." (Ex. Q.)
Nevertheless, through his insurance defense counsel in the instant
case, Berry noticed Ciprianos deposition on a new twist of the same
illogical theory: that since Cipriano allegedly lied regarding Berry in
the defamation cases and his counsel allegedly knew about the false
statements, Hurtado must also be lying in this case since he has the same
counsel! 3
Prior to the scheduled Cipriano deposition in this case, Cipriano
contacted Mr. Moxon on June 16, 2000 and stated that Berry was holding him
"hostage," that Berry had forced him to sign a perjurious declaration, and
he wanted to escape from Berry. (Ex. R, Cipriano Transcript; Ex. S,
Cipriano Dec.) Defendants counsel thereafter canceled the deposition.
Despite this odd event, defendant re-served Cipriano and insisted that his
deposition be taken on August 7, 2000. At the deposition defense counsel,
Edith Matthai, made it clear that she was questioning Cipriano not about
any legitimate issue in this case, but rather to support the arguments
Berry was making in the bankruptcy court and arguments being made by
Henson in the motion he had filed in federal court.4 Mr. Moxon therefore
exercised his right under C.C.P. §2025(n) to suspend the deposition to
bring a motion for protective order; however, Ms. Matthai refused, and
continued with irrelevant questions seeking to invade the attorney-client
privilege between Cipriano and Mr. Moxon. (Id.)
Although Ms. Matthai refused to honor the section 2025(n)
suspension by Mr. Moxon, she agreed, in Berrys presence and with his
consent and input, that the deposition would be sealed for all purposes
pending a motion to strike or any other relief. (Id.)
Nevertheless, the next day, Henson made a lengthy public posting
to the Internet, describing alleged details of the Cipriano deposition
from Berrys twisted perspective, and making various disgusting comments
regarding plaintiffs counsel. Henson compounded this by filing the
posting as exhibit A to his motion. Plaintiffs counsel contacted Ms.
Matthai to find out why the stipulation had been breached in this fashion,
at which time she claimed no knowledge of the breach.5 Henson thereafter
publicly acknowledged on the Internet that he knew that the deposition was
sealed, but that his posting of it was a "mistake."6 Indeed, despite his
knowledge of his "mistake," Henson failed to file the same posting in
support of his motion, under seal. Plaintiff requests it be placed under
seal until such time as plaintiffs motion to strike the Cipriano
deposition is heard.
D. Plaintiffs Effort To Meet And Confer.
As the meet and confer and subsequent motions filed here
illustrate, this case is being used by Berry and his friend Henson to
attack the Scientology religion and those connected with it, while running
up the bills of Berrys well-paid insurance defense counsel. For some
time, both Henson and Berry have attempted to destroy the churches of
Scientology and their parishioners, something which they happily and
openly admit. This conduct also includes engaging in outrageous and
scurrilous attacks against any Scientologist.
One of the most outrageous examples of such conduct relates to the
tragic accidental death of Mr. Moxons daughter in June of this year.
During the deposition of Mr. Cipriano, which Mr. Berry attended, Mr.
Berry sat in a corner and made continual degrading, snide and disgusting
comments in the presence of Mr. Moxon and Ms. Paquette, about Mr. Moxons
loss, clearly to cause Mr. Moxon more distress and upset. Likewise, in
Ms. Paquettes attempts to meet and confer with Mr. Henson regarding his
request to change the date of his deposition, he continuously made rude
and vile comments about Mr. Moxons tragic loss and at one point, told her
"to picture her daughter dying." At that point, Ms. Paquette told him
that she was not going to listen to such harassing comments. Mr. Henson
was clearly happy with the response he evoked as he could not stop
laughing about it. (Paquette Dec., ¶ 25.)
Mr. Henson did not limit such comments to his conversation with
Ms. Paquette. In his telephone call with Ms. Sellars and Mr. Moxon, he
made similar harassing and disgusting comments
[My comment (which I have on tape) was that I would be "out picketing
again because I got stuck here because of this hearing. So I will be out
there picketing them over the fact they killed your daughter in that
transformer vault." This is a true statement even if it was only gross
negligence from not replacing the manhole bolts.]
about Mr. Moxons daughter
to Mr. Moxon himself, that preceded Mr. Moxons understandably outraged
reaction. Berrys attorney intentionally omitted these comments from her
declaration. It is clear that Mr. Berry and Mr. Henson will not control
themselves, and Mr. Berrys defense counsel refuses to reign in their
egregious misconduct.7
The Court also needs to be informed that both Henson and Berry
have made false statements in their motions concerning the history of
interaction between Mr. Moxon and Mr. Henson. In the motion filed by
Berry, he states that "Mr. Henson is now in bankruptcy and again Mr.
Moxon has appeared adversely to him and taken both Mr. Henson and his
wifes depositions." (Motion at 3:13-15.) And in Hensons motion, he
states: "Witness and witnesss wife have been abusively deposed a number of
times by the law firm of Moxon and Kobrin, within the past two months in a
bankruptcy action for several hours." (Henson Motion at 1:20-21.) These
statements are absolutely false.
The only Moxon & Kobrin attorney who has had any involvement in
Hensons bankruptcy case, and indeed in the copyright litigation, is Helena
K. Kobrin. Mr. Moxon has not been involved and has never deposed Mr.
Henson in any case. And the depositions of Mr. Henson and his wife taken
in recent months have been taken by Samuel D. Rosen of Paul, Hastings,
Janofsky & Walker LLP, and no attorney from Moxon & Kobrin has even been
present. (Declaration of Helena K. Kobrin.) Thus, Berry and Henson once
again are attempting to smear Mr. Moxon and the Moxon & Kobrin law firm
with allegations that are patently false.
III. DISCUSSION
A. Both Henson and Defendant Have Waived The Attorney-Client and
Work Product Privileges In This Instance.
When a party invokes privilege in order to withhold crucial
evidence, the policy favoring full disclosure of relevant evidence
conflicts with the policy underlying the privilege. Courts have resolved
this conflict by holding that the proponent of the claim must give up the
privilege in order to pursue the claim. Where privileged information goes
to the heart of the claim, fundamental fairness requires that it be
disclosed for the litigation to proceed. Steiny and Company, Inc. v.
California Electric Supply Company, Inc. (2000) 79 Cal.App.4th 285, 292,
93 Cal.Rptr.2d 920 (emphasis added), citing Merritt v. Superior Court
(1970) 9 Cal.App.3d 721, 730, 88 Cal.Rptr. 337 (plaintiff whose claim
depended on his attorneys state of mind could not proceed and continue to
invoke the attorney-client privilege); Fremond Indemnity Company v.
Superior Court (1982) 137 Cal.App.3d 554, 560, 187 Cal.Rptr. 137 (court
could order dismissal of suit against fire insurance company where
plaintiff invoked Fifth Amendment privilege to preclude questioning as to
whether he started fire).
In Merritt, plaintiff brought a bad faith action against his
lawyers insurance carrier, alleging that, because his lawyer had been
"confused," he was unable to settle or properly handle his case. In light
of these statements, the defendants requested discovery seeking all
information regarding the lawyers preparation, evaluation and state of
mind, which the plaintiff refused to answer, asserting attorney-client and
work product privileges. The Merritt court rejected plaintiffs assertion,
holding that plaintiff had clearly waived the attorney-client privilege
because he had openly placed "in issue the decisions, conclusions and
mental state of his then attorneys, particularly as to their confusion and
disability." (Id at 730.) The Merritt court thus articulated the rule
that there exists an implied waiver of the attorney-client privilege and
disclosure is "required" of attorney-client communications where the
client "places at issue the attorneys decisions, conclusions or mental
state" as an element of his case. (Id. at 730-731.)
Merritt, Steiny and their progeny apply directly here. Several of
plaintiffs causes of action include legal malpractice and breach of
fiduciary duty, i.e., that defendants representation of the plaintiff fell
below the standard of care. Here, as in Merrit, supra, Mr. Henson and the
defendant have submitted declarations and motions stating that because of
defendants confused and "distracted" mental state beginning in May of
1998, his practice of law fell below the standard of care warranting
reversal of the judgment in the copyright case. As set forth above, this
constitutes a waiver by both Mr. Henson and defendant by putting at issue,
in the copyright infringement action, Mr. Berrys "decisions, conclusions
and mental state" concerning the practice of law at the very time period
that defendant was also representing plaintiff, giving rise to the causes
of action here.
Defendant cannot have it both ways. He cannot waive the
attorney-client privilege by claiming he was confused and distracted and
thus his practice of law fell below the standard of care beginning in May
of 1998 for the purpose of attempting to overturn one judgment, while
claiming here that he was not confused or distracted during this same time
period, when suffering the same alleged distractions, and then claim the
attorney-client privilege applies in this case. To do so defies logic and
results in one-sided discovery in his favor which is prejudicial to
plaintiff here. This is the very result that Merritt, Fremont, and Steiny
prohibit.
[This is nuts! This would be the case if I were suing Berry, but not
when someone else is suing him.]
Likewise, these same principles apply to defendants claim of work
product. As set forth above, he has waived this privilege as to evidence
and documents going to his and Hensons assertions that his practice of law
fell below the standard of care during the time he was representing both
Henson and plaintiff here. And to the extent Henson is claiming work
product, he is not a lawyer and this privilege is simply inapplicable.
Accordingly, defendants and Mr. Hensons motions for protective
order on these grounds must be denied.
B. Plaintiff, Like the Defendant, Is Entitled To Obtain All Relevant
Information And That Information Calculated to Lead to The Discovery Of
Admissible Evidence Under The Law.
Any party may obtain discovery of any matter, not privileged,
that is relevant to the subject matter involved in the lawsuit. Gonzales
v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, 39 Cal.Rptr.2d 896.
"Californias pretrial discovery procedures are designed to minimize the
opportunities for fabrication and forgetfulness, and to eliminate the
need for guesswork about the other sides evidence, with all doubts about
discoverability resolved in favor of disclosure." Glenfed Development v.
Superior Court (1997) 53 Cal.App.4th 1113, 1119, 62 Cal.Rptr.2d 195.
As shown here, defendant has spared no expense in conducting
discovery in this case. He has taken discovery asking all manner of
questions seeking character evidence, background information, and other
information on matters that are at best tangentially related, and at
worst, irrelevant to the issues here. Moreover, defendant has taken
discovery on the very issue of defendants penchant for having sex with
young boys, an issue raised in plaintiffs complaint. In the Cipriano
deposition, Ms. Matthai went line by line through Mr. Ciprianos 1994
declaration asking him about defendants sexual history, which included
statements that defendant routinely engaged in drug use and sexual
encounters with 15-17 year old males. (Paquette Dec., ¶ 24.)
Ms. Matthai has asked every witness, particularly plaintiffs
family members about Scientology. None of them, including plaintiff, has
even heard of Scientology which has nothing to do with this case.
Contrary to the statements they make in their motion, it is
defendant and his counsel who have put the pedophilia issue at the
forefront of the discovery here. Indeed, plaintiff has taken no
deposition, other than that of the defendant, and propounded no discovery
thus far on this issue. In essence, defendant and his counsel want to
take the position that they are entitled to take any and all discovery
they wish going to issues raised by the complaint, but plaintiff may
not. This position is without support, either in the facts here or the law.
C. There Should Be No Special Master.
Plaintiff also strenuously objects to the appointment of a
special master for the deposition. While defendants insurance covers all
relevant and irrelevant costs, plaintiff has no such source of funds to
pay for unnecessary costs. It would be manifestly unfair to require such
an expenditure of plaintiff in order for plaintiff to bring his claim.8
[I have been *attacked* twice by scientologists, once in a deposition by
Helena Kobrin and Alan Cartwright. I filed a police report on the one in
the deposition where Kobrin jumped me from one side and Cartwright from
the other to recover a paper they had given me in error.]
IV. CONCLUSION
The personal vendetta and hate campaign by both Berry and Henson
against the Scientology religion and its parishioners have no place
here. Mr. Henson was lawfully subpoenaed so that plaintiff could obtain
relevant information and information calculated to lead to the discovery
of admissible evidence, related to (1) his publically made statements
concerning defendants state of mind in representing him during the same
time period in which the causes of action arose here, to which all
privileges have been waived, (2) any information he may have concerning
the issues concerning defendants activities with young boys, and (3) the
circumstances surrounding how he came to have information that defendant
committed to keep confidential in this case.
Accordingly, defendant and Mr. Hensons motion for protective
order is without merit and must be denied.
Dated: September 8, 2000 Respectfully submitted,
MOXON & KOBRIN

TABLE OF CONTENTS
Page
I. INTRODUCTION
1
II. STATEMENT OF FACTS
3
A. Background History Of Discovery Thus Far.
3
B. Background Regarding H. Keith Henson.
3
C. Background to Hensons Involvement in this Lawsuit
Requiring His Deposition.
4
D. Plaintiffs Effort To Meet And Confer.
9
III. DISCUSSION
10
A. Both Henson and Defendant Have Waived The
Attorney-Client and Work Product Privileges In This
Instance.
10
B. Plaintiff, Like the Defendant, Is Entitled To Obtain All
Relevant Information And That Information Calculated to Lead to
The Discovery Of Admissible Evidence Under The Law.
12
C. There Should Be No Special Master.
13
IV. CONCLUSION
13